What Proof Do I Need for a Humanitarian and Compassionate (H&C) Application?

By Downtown Legal Services, University of Toronto Faculty of Law Community Legal Clinic (Updated by OWJN April 2013)

An H&C application is used in special circumstances to ask the government for permission to stay in Canada based on Humanitarian and Compassionate (H&C) grounds. If you are in Canada with temporary status or you do not have valid immigration status, an H&C might be one of your only options for staying in the country.

The general rule under immigration law is that people apply for permanent residence from outside of Canada. With an H&C application, you are asking the government to make an exception to this rule and allow you to apply from within Canada.

This article provides general legal information only. It should not be taken as legal advice. This area of law has become very complicated and you should get help from a lawyer to prepare a Humanitarian & Compassionate application. To contact Downtown Legal Services in Toronto, call 416-934-4535.

Important Changes to the Law for H&C Applications:

You cannot apply for an H&C application while you have a pending refugee claim or another H&C application in progress.

If you have made a refugee claim that was denied, you cannot apply for an H & C until 12 monthsAFTER the date of your negative decision. Please see the important information at the end of the article about refugee claims.

There are 2 exceptions to this one-year bar for failed refugee claimants. You may be able to apply if you can prove:

your life would be at risk because your country cannot give you the right health or medical care

your removal from Canada would have a negative effect on a child. This does not have to be your child – it can be a child that you are involved with who would be directly affected by your removal.

NOTE: If you are a Designated Foreign National (DFN), meaning that the government decided you belong to a special category of foreign nationals, you cannot apply for an H & C for 5 years from the date you were listed as a DFN.

If you are a DFN and your refugee claim was denied, you have to wait until 5 years after your negative refugee decision before you can make an H&C application. For example, in the past, certain big groups of foreign nationals arriving in Canada by boat have been named as DFNs.

Documents to Submit as Evidence with your H&C Application:

The list below lists some EXAMPLES of the kinds of documents that you should try to get if possible. These are only EXAMPLES and you may not be able to get all of these documents. There may be other kinds of proof that you can get. The law has become very complicated and it is important to get legal advice. We recommend having a lawyer help you prepare your H&C application. While you look for a lawyer, you can try and gather these documents to have them ready to go.

In general, in and H&C application, you need to prove to Citizenship and Immigration Canada (CIC):

That you are who you say you are;

That you have made Canada your new home; and

That it would be very difficult for you to return to your country.

CIC gets many applications and you want yours to stand out. The best way to do this is to give them a big package with as much evidence as possible.

A. Proving who you are

Some examples of documents that can help prove your identity include:

passport, national ID card

birth certificate, marriage certificate

credit cards, driver’s license, work ID

school records, diplomas, transcripts, etc.

bills with your name on them (phone bills, electricity bills, etc.)

a will, deeds to property, etc.

If you don’t have any other ID, can you get affidavits from members of your community in Toronto?

B. Establishment: Proving that you have made Canada your new home

CIC wants to see that there are strong reasons why you need to stay in Canada. You should think about the following:

Family

Do you have any family members who are Canadian citizens or permanent residents? Are you close with them? If so, you need to show CIC how close you are, and how difficult it would be for you to be separated from them. Try to get:

Letters from your family members, telling CIC how important you are to them and how much they would miss you if you had to leave. These letters should say:

the author’s full name and signature

the date they were written

how the author is related to you

why they think that you should be allowed to stay in Canada

Children can draw pictures if they are too young to write letters.

Photos of you spending time together with your family.

If any of your family members are especially vulnerable (children, elderly people), and rely on you, you should show CIC how your leaving Canada will affect them.

If you provide care to an elderly person, show proof of this (letters from family should mention this)

If a child in your family (grandchild, nephew or niece, etc.) is very close to you, and would suffer greatly if you left Canada, talk to your lawyer about having that child meet with a psychiatrist. A psychiatrist can write a report explaining the harm the child will suffer if you leave Canada.

Friends and Neighbours

CIC likes to see that you have made friends in the community. The best way to show this is to get letters of support from friends, neighbours, and people in your community. Try to get letters from all different kinds of people – the more the better. These letters should say:

the author’s full name and signature

the date they were written

how the author knows you

why they think that you should be allowed to stay in Canada

it is great if they can write at the end of the letter, “If you would like any further information, please feel free to contact me” – and give their phone number.

if they are permanent residents or citizens

Work

If you are working, you should ask your boss to write you a letter. This letter should say:

what your job title is

what kinds of work do you, what kinds of responsibilities do you have

how long you have been working at this job

how much you earn (and if your boss has ever given you a pay raise, ask him or her to include this information; it shows that you do good work and are valuable to your boss)

if possible, your boss should tell CIC that you are a good worker, and that he or she thinks that you should be allowed to stay in Canada.

If your boss does not know about your immigration situation, and you are afraid to ask him or her for a letter, then it is important to collect other evidence to show that you are working (pay stubs, letters from other employees).

If you are helping your family members to run a family business, this counts! Ask your family to write a letter for you explaining the kinds of work that you are doing.

NOTE: It is important to show CIC that you are working, even if you are working without a work permit. CIC should still give you credit for supporting yourself.

School

Have you been going to school? If so, you should give CIC proof of this. CIC likes to see that people are making efforts to learn new things. If you are studying English, taking a computer course, a cooking class, any kind of class, get proof!

you can show a copy of your enrolment slip

also, teachers are often happy to write letters for their students. Ask your teacher if he or she will write you a letter that says:

that he or she is your teacher

how long you have been studying with him or her

that you are a good student, a hardworking student

that he or she thinks that you should be allowed to stay in Canada

Community activities

CIC likes to know if you are involved in any community groups. Do you go to a church, temple, mosque or synagogue, or practice your religion with other people? If so, this counts as a community group!

Ask your leader (priest, rabbi, imam, etc.) to write a letter saying that you are a valuable member of your religious community

Ask the people in your group to write letters supporting you.

Do you do any volunteer work? CIC likes to see that applicants like to help other people. You will want to make sure CIC knows if you:

volunteer with an organization (shelter, soup kitchen, etc.). You should get a letter from the volunteer coordinator, saying:

that you are a volunteer

how long you have been volunteering

what kinds of volunteer work you do

baby-sit for friends or neighbours

help neighbourhood children with their homework

look after a neighbour’s apartment while they are away

anything else that shows that you make time to help people

Your children

If your children are Canadian citizens, get copies of their birth certificates to prove this.

Whether your children are Canadian citizens or not, CIC needs to think about what is best for them. You need to show why it is best for your children to stay in Canada. You should try to get:

Letters from your children, where they say in their own words why they want to stay in Canada. If they are too young to write, they can draw pictures of the people and things in Canada that are important to them

Letters from your children’s school teachers. These letters should say:

That they are your child’s teacher

What they know about him or her (he or she is kind, hardworking, thoughtful, etc.)

That they believe that he or she should be allowed to stay in Canada

Any report cards, awards, school certificates, etc. to show that they are doing well in school, or at least trying hard!

Proof of any after-school activities that they do (like sports, music, dance, etc.)

Letters from your children’s friends.

If your children will have to leave other family members behind if they leave Canada, you will need to show the bad effect that this will have on them. Ask your lawyer about arranging for your children to meet with a psychiatrist. A psychiatrist can write a report explaining the harm that they will suffer if they have to leave Canada.

Medical care or therapy

If you or your children are seeing a doctor regularly because of a specific medical problem, or are seeing a counsellor, psychologist or psychiatrist, this might be another good reason why you should be allowed to stay in Canada.

Talk to your lawyer about arranging to get a letter from your doctor or therapist.

C. Hardship: Proving that it would be very difficult for you to return to your country

If you have been away from your country for a long time, it may be very hard for you to return because you do not know anybody there anymore. If this is the case, you need to prove when you left your country:

If you came to Canada using a passport, a copy of your passport, with the stamp in it, will be proof enough.

If you came here using false papers, you should try to find proof that you have been in Canada for as long as you say you have; see if you can find any documents from when you first arrived that have your name on them (lease, phone bills, bank statements, pay stubs, etc.).

Are you afraid to go back to your country because you will not get the medical care that you need?

Talk to your lawyer about this, and he or she will do research about this problem.

Are you afraid to go back to your country because there is war, an oppressive government, a flood, a famine, or some other kind of political or natural disaster?

Talk to your lawyer about this, and he or she will do research about this problem.

Are you afraid to go back to your country because someone hurt or threatened you or your family before you left? If so, you will need to get proof to show CIC what happened to you, and why you are still afraid.

If you were denied refugee status in Canada:

In June 2010, Citizenship and Immigration Canada changed the factors that will be considered in an H&C application. Currently, Citizenship and Immigration Canada will not consider RISKyou may face in your country in the same way that your refugee claim looks at the risk. Citizenship and Immigration will consider HARDSHIP you may face there. A lawyer can help explain the difference and how it will impact your application.

The FACT that your refugee claim was denied is not important – CIC and the Refugee Board are looking for different things.

The TIMING of your negative refugee claim is important, though. Changes to the law prevent failed refugee claimants from applying for an H &C if less than 12 months have passed since their refugee claim was denied. As stated earlier, there are two exceptions to this new rule:

if your life would be at risk because your country cannot give you adequate health or medical care – you will need to get a letter or report from your doctor about your condition as well as information about what the situation is in your country to prove you fit within this exception

OR

if your removal from Canada would have a negative effect on a child. This does not have to be your child, it can be a child that you are involved with who would be directly affected by your removal – you will have to gather letters and/or sworn statements (affidavits) from either the child or persons close to them that explain how your departure will affect the child. Medical or psychological evidence can be useful to establish this as well.

There may still be helpful evidence in your refugee claim file. If a lawyer or agent helped you with your claim, please contact him or her and ask for a copy of your full file. If you have any trouble, please ask your lawyer for help. Talk to your lawyer about what kind of new information you should try to get.

If you have never made a refugee claim:

If you have never made a refugee claim, but are afraid to go back to your country, please talk to your lawyer right away. For help finding a lawyer, you can try to call Downtown Legal Services in Toronto at 416-934-4535. For help from the Refugee Law Office or other local community legal clinics, call Legal Aid Ontario at 1-800-668-8258.

For more help finding a lawyer, the Law Society of Upper Canada has a referral service that can provide a local lawyer who will give you a free 30 minute consultation. You can get some general information about the law, how long your case might take and how much hiring a lawyer might cost. You decide whether or not you want to hire the lawyer to work for you. Your call to the Lawyer Referral Service is free from anywhere in Ontario.

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Information on OWJN is not legal advice

OWJN contains general legal information only. OWJN does not give legal advice. If you need legal advice, you should contact a lawyer, who can help you make decisions about your legal rights. You may be eligible for legal advice from a community Legal Aid clinic.